2010 PLP 386 (CLC)

IJAZ-UL-AHSAN, J.

Short question involved in this petition is whether it is incumbent upon the Family Court to pass a decree for dissolution of marriage forthwith in case pre-trial reconciliation efforts fail.

2. The learned counsel for the petitioner states that it is common ground between the parties that pre-trial reconciliation efforts failed, however, instead of passing a decree for dissolution of marriage in terms of the proviso to section 10 of the West Pakistan Family Courts Act, 1964, the learned trial Court has proceeded to frame issues and is in the process of conducting a trial while keeping the marriage intact. It is submitted that the said act on the part of the learned trial Court is illegal in view of the express powers granted to it by virtue of insertion of the aforesaid proviso by Family Courts Ordinance (Ordinance No.LV) of 2002 dated 1-10-2002.

3. The learned counsel for the respondent argues that there is an allegation in the pleadings of the parties that some gold ornaments were given to the bride at the time of her marriage and the respondent is claiming return of said gold ornaments. He argues that as long as the gold ornaments in addition to Haq Mehr received by the bride is not returned the marriage cannot be dissolved.

4. The proviso of section 10(4) of the West Pakistan Family Courts, Act, 1964 has been examined. It is quite categoric in its intent, purpose and language and is reproduced as follows:

Section 10(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for [the recording of the evidence[:] [Provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.] It is apparent from a plain reading of the aforesaid proviso that the Family Court has been empowered in a suit for dissolution of marriage, on failure of pre-trial reconciliation proceedings to pass a decree for dissolution of marriage forthwith and restore to the husband Haq Mehr received by the wife in consideration of marriage at the time of marriage. The real intention behind insertion of the aforesaid proviso was to cut-short the process of a protracted trial in suits for dissolution of marriage and save the woman the agony of going through a drawn legal process. An effort appears to have been made to lessen and relieve the effects of the oft-repeated cliche "Justice delayed is justice denied." 5. In view of the aforesaid language of the proviso, the arguments of the learned counsel for the respondent that in addition to Haq Mehr, the petitioner is also required to return the gold ornaments received by her during subsistence of marriage does not in my opinion hold any ground. Going beyond the language of the proviso and reading other matters in it will invariably lead to undesirable results which would defeat and nullify the intents and purpose for which the amendment was made. The proviso is in the nature of non obstante clause and overrides the sequential order given in section 10(4) of the Family Courts Act, 1964. The act of the Court whereby it has proceeded to frame issues despite failure of reconciliation efforts, is contrary to the dictates of the law and therefore, is without lawful authority and of no legal effect. 6. As far as the claim of the petitioner for recovery of gold ornaments is concerned, he is free to avail remedies available to him under the law. However, the matter of dissolution of marriage cannot be held up till outcome of the proceedings for recovery of gold ornaments. In case pre-trial reconciliation efforts have failed, the learned Family Court will pass a decree for dissolution of marriage forthwith and restore to the husband the Haq Mehr recovered by the wife in consideration off marriage. 7. In view of the above, this petition is allowed, the impugned order dated 24-6-2009 is set aside. The learned trial Court shall proceed with the matter in light of the above observations. Petition accepted. S.A.K./R-86/L Petition accepted.